State v Tutara - Summing Up [2015] FJHC 790; HAC050.2014LAB (22 October 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 050 OF 2014LAB

STATE

V

KATOKAITI TUTARA

Counsels : Ms. A. Vavakadakua for State
Mr. M. Fesaitu for Accused

Hearings : 19, 20 and 21October, 2015
Summing Up : 22 October, 2015

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

2. THE BURDEN AND STANDARD OF PROOF

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

100. THE INFORMATION

7. You have a copy ofinformation with you, and I will now read the same to you:

"... [read from the information]...."

4. THE MAIN ISSUES

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:

(i) On count no. 1, did the accused, on 20 July 2013, at Rabiin the Northern Division, rape the complainant (PW1)?

(ii) On count no. 2, did the accused, on 24 January 2014, at Rabi in the Northern Division, rape the complainant (PW1)?

(iii) On count no. 3, did the accused, on 12January 2013, at Rabi in the Northern Division, rape the complainant (PW2)?

(iv) On count no. 4, did the accused, on 20January2014, at Rabi in the Northern Division, rape the complainant (PW2)?

(v) On count no. 5, did the accused, on 28 January 2014, at Rabi in the Northern Division, rape the complainant (PW2)?

5. THE OFFENCE AND IT'S ELEMENTS
   

9. On counts nos. 1, 2, 3, 4 and 5, the accused was charged with "rape", contrary to Section 207 (1) and (2) (a) of the Crimes Decree 2009. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;

(ii) without the complainant's consent; and

(iii) he knew the complainant was not consenting to sex, at the time.

10. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.

11. Consent is to "agree freely and voluntarily and out of her own free will", and she must have the necessary mental capacity to give her consent. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority over her, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all. Note in count no. 1, 2, 4 and 5, the complainants (PW1 and PW2) were over 13 years old, and were thus capable, in law, to give their consent to sexual intercourse. However, in count no. 3, the complainant (PW2) was under the age of13 years, and thus as a matter of law, was incapable of giving her consent to sexual intercourse.

12. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue. For a girl under 13 years old, a person is presumed to know that she is incapable of consenting to sexual intercourse, at the material time.

6. THE PROSECUTION'S CASE

13. The prosecution's case were as follows. The accused is 65 years old. The first complainant (PW1) is now 16 years old. The second complainant (PW2) is now 15 years old. Both the complainants' mothers are the accused's (DW1) biological daughters. So both complainants are the accused's granddaughters. The accused is their grandfather. In 2013, according to the prosecution, PW1 was living with her grandfather, in a village in Rabi. On 20 July 2013, according to the prosecution, the accused woke PW1 up, and told her, they were going into the bush to collect some "papai" (root crop).

14. Once in the bush, the accused cut PW1's trousers with a cane knife, and threw the same into the bush. He then ordered PW1 to lie down on the ground. He was holding a cane knife at the time. He then took off his pants, went ontop PW1 and inserted his penis into her vagina. She did not consent to the above, and the accused well knew she was not consenting to sex at the time. He warned her not to tell anyone, or he will kill her (count no. 1). On 24 January 2014, according to the prosecution, the accused again repeated the above episode to PW1 (count no. 2).

15. As for PW2, on 12 January 2013, she was staying at the house of the accused. According to the prosecution, on that day, the accused and PW2 went to the family plantation in the bush to clean the same. PW2 was under 13 years old at the time. The accused later cleared a space in the bush. He ordered PW2 to take off her clothes and lie on the ground. She refused, and he pushed her to the ground. He went ontop of her, and inserted his penis into PW2's vagina. As a matter of law, she was under 13 years and was thus incapable of consenting to sex. He well knew she was incapable of consenting to sex at the time, as she was under 13 years old (count no. 3). On 20 January 2014, the accused repeated the above episode to PW2. He warned her not to tell anyone about the incident or he will kill her (count no. 4).

16. On 28 January 2014, PW2 was folding clothes in a bedroom in the accused's house. The accused came into the bedroom and forced himself on PW2. At the time, he was holding a kitchen knife. He tied PW2's mouth with a piece of cloth. He tied her wrists with ropes tied to a stick. He forced her onto a mattress which was on the floor. He tied her ankles with a rope. He then inserted his penis into PW2's vagina without her consent. He well knew she was not consenting to sex at the time, because he had to tie her hands and legs, including gaging her, before he inserted his penis into her vagina (count no. 5).

17. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on all counts. That was the case for the prosecution.

7. THE ACCUSED'S CASE

18. On 19 October 2015, the first day of the trial, the information was put to the accused in the presence of his counsel. He pleaded not guilty to all five counts. In other words, he denied the five rape allegations against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was called upon to make his defence, he chose to give sworn evidence and called no witness. That was his right.

19. The accused's case was very simple. On oath, he denied ever inserting his penis into PW1 and PW2s' vaginas, as alleged in counts no. 1, 2, 3, 4, and 5. He denied the first element of rape as described in paragraph 9 (i) hereof. If you accept the above, then you will have to find the accused not guilty as charged on all counts. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged on all courts. That was the case for the defence.

8. ANALYSIS OF THE EVIDENCE

20. The State's case against the accused (DW1) was based on the direct verbal evidence of the complainants (i.e. PW1 and PW2). As a matter of law, the complainants' direct verbal evidence does not need to be corroborated by independent evidence, for you, as assessors and judges of fact to accept the same. For example, it is now not fatal not to produce medical evidence to confirm penile penetration of the complainant's vagina, to satisfy element no. 1 of rape, as described in paragraph 9 (i) hereof. If you accept the complainants' direct verbal evidence on the elements of rape, as described in paragraph 9 (i), (ii) and (iii) hereof, that in itself would be sufficient to support the charge of rape. Likewise, if you accept the accused's direct verbal evidence as to his denying the rape allegations, as more credible than the complainants' direct verbal evidence on the rape allegation, then you may find the accused not guilty as charged on all counts. This is so despite the burden of proof being on the prosecution as described in paragraph 4 hereof.

21. PW1 said, in her evidence that, she was staying with the accused on 20 July 2013. The accused woke her up on that day for them to gather some "papai" (root crop) from the bush. While in the bush, PW1 said the accused forced her onto the ground, forcefully took off her trousers, took off his pants and forcefully penetrated her vagina with his penis. She said, she did not consent to the same, and the accused well knew she was not consenting to the same. The accused, at the time, had a cane knife with him, and he threatened PW1 with the same (count no. 1).

22. PW1 said, on 24 January 2014, the accused again took her to the bush to look for some "papai" (root crop). While in the bush, the accused asked her about her menstruation. He was carrying a cane knife. In the bush, she said, the accused forced her to the ground, forcefully took off her clothes, took off his clothes, and forcefully penetrated her vagina with his penis. She said, she did not consent to the same, and he well knew she was not consenting to sex at the time, because he talked harshly to her (count no. 2).

23. As for PW2, she said, on 12 January 2013, she had not turn 13 years old. PW2 said, she was staying with the accused at the time. On 12 January 2013, the accused told PW2 for them to go to the family plantation and attend to the same by doing some weeding. While in the plantation, PW2 said, the accused forced her to the ground, forcefully took off her clothes, took his pants off, and forcefully inserted his penis into her vagina. PW2 said, he threatened to kill her if she did not have sex with him. Note that PW2 was under 13 years old at the time; she was as a matter of law, incapable of consenting to sex, and persons who had sex with her were presumed in law to know she was incapable of consenting to sex at the time (count no. 3).

24. On 20 January 2014, PW2 said, the accused repeated the above episode. They were in the family plantation. PW2 said, the accused came to her and forced her to the ground. She said, he forced her to take off her clothes. He forced her to have sex with him or he will kill her with his cane knife. PW2 said, he then took off his trousers, and forcefully inserted his penis into her vagina, without her consent. He well knew she was not consenting to sex at the time, because he threatened to kill her with his cane knife, if she didn't have sex with him. After the incident, PW2 said, they went home (count no. 4).

25. On 28 January 2014, PW2 said, she was folding clothes in a bedroom in the accused's house. PW2 said, the accused came into the bedroom and tied a piece of cloth on her mouth and around her head. PW2 said, the accused then threw her on a mattress which was on the floor. PW2 said, the accused then tied her wrists to two stick with a piece of rope. PW2 said, he then tied her ankles with a rope. Having subdued her, he then forcefully inserted his penis into her vagina, without her consent. He well knew she was not consenting to sex at the time, because he had to tie her up before he had sex with her (count no. 5).

26. The accused, on the other hand, denied all the above allegations by PW1 and PW2 against him. He said, on oath that, at no time whatsoever did he insert his penis into PW1 and PW2s' vaginas, as alleged in count no. 1, 2, 3, 4 and 5. He said, they were his granddaughters, and he didn't rape them as alleged.

27. You have heard and watched the two complainants and the accused give evidence in the courtroom. You have heard their evidence. You have observed their demeanours. You have seen and heard them answered the questions put to them in the courtroom. Who do you think was the credible witness? Who do you think was forthright as a witness? Who do you think was evasive as a witness? Who do you think, from your point of view, was telling the truth? If you find the two complainants to be credible witnesses, and you accept their version of events, you must find the accused guilty as charged on all counts. If you do not find them to be credible witnesses, and you reject their version of events, you must find the accused not guilty as charged on all count. It is a matter entirely for you.

1. SUMMARY

28. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

30. Your possible opinions are as follows:

(i) Count No. 1 - Rape : Guilty or Not Guilty

(ii) Count No. 2 - Rape : Guilty or Not Guilty

(iii) Count No. 3 - Rape : Guilty or Not Guilty

(iv) Count No. 4 - Rape : Guilty or Not Guilty

(iv) Count No. 5 - Rape : Guilty or Not Guilty

31. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

SalesiTemo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa